74 Ohio Law. Abs. 417 | Ohio Ct. App. | 1956
OPINION
This is a law appeal from a judgment of the Common Pleas Court denying the plaintiffs a right to enjoin the defendants from constructing a trailer camp on neighboring property. The facts were stipulated and those pertinent to this appeal appear to be as follows: The appellees herein, G. Clifford Smith and Curtis A. Smith, prior to March 27, 1952, were desirous of constructing a trailer court in Franklin County. After making a careful survey of suitable locations the tract of land which is the subject of this action, consisting of approximately eleven acres, was found to be free of any zoning regulations, and on said date the
We have examined the well-considered opinion of Judge Leach in which the Ohio authorities as well as those from foreign jurisdiction are discussed, and are in full accord with his conclusion that a nonconforming use has been established by the defendants. It would serve no useful purpose for us to again review the same subject matter. We also find that the court’s conclusion is supported in McQuillan on Municipal Corporations, 3rd Ed. Sec. 25.157 (Volume 8, Pages 272 and 273):
“Indeed, the general rule is that any substantial change of position, expenditures or incurrence of obligations under a permit entitles the permittee to complete the construction or use the premises for the purposes authorized irrespective of subsequent zoning or changes in zoning. Thus when the granting of building permits is followed by the letting of contracts and commencement of the work, a subsequent amendment to the zoning restrictions will not affect the permit.”
We are of the further opinion that the present action is barred by reason of the adjudication in the previous case. In that case the action was grounded upon the premise that the trailer camp would constitute a nuisance. But before the action was dismissed the zoning regulation had been adopted. The zoning issue could have been raised in that case either by amendment or supplemental petition which was not done. In Quinn, Auditor et al., v. State, ex rel. Leroy, 118 Oh St 48, it is said in the syllabus, paragraph 1:
“Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns*420 the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined but also as to every other question which might properly have been litigated in the case. (Nixon v. Ogg, 53 Oh St 361, 42 N. E., 32, and Strangward v. American Brass Bedstead Co., 82 Oh St 121, 91 N. E., 988, followed and approved.) ”
We are also in accord with the court’s conclusion that the entire eleven acres constituted but one tract and not two. This was a factual question and one solely for the determination of the trial court.
Finding no error in the record the judgment will be affirmed.